Cliven Bundy needs to pay his grazing billshttp://www.hcn.org/wotr/cliven-bundy-needs-to-pay-his-grazing-bills
Whatever you’ve read or seen on television, a new “Sagebrush Rebellion” of public-land ranchers against the federal government has not erupted in rural Nevada. What’s happened there can best be described as the last act of a long-running dispute between a delusional rancher and a hapless federal agency, the Bureau of Land Management. Unfortunately, the controversy has attracted anti-government zealots, who see this as an opportunity to “fight for freedom,” and the media has enthusiastically followed them. Perhaps it’s not surprising that this kind of piling-on has happened before.

The first time I experienced something like it was back in 1995 in the old Hamilton, Mont., high school gym. The Militia of Montana had rented the joint and a pretty good crowd showed up — though I’m pleased to say it was not as large as the crowds we used to draw for the all-star basketball games I organized when I lived in the Bitterroot. I remember one of those speakers promising that something big would happen on April 19, the second anniversary of the Waco tragedy. And yes, something did: April 19, 1995, was the day “Patriot” member Timothy McVeigh set off a fertilizer bomb outside a daycare in Oklahoma City so he could blow up hundreds of working people.

Montana's "militia" wasn't involved in the bombing. They were just repeating the chatter of other extremists. But those violent crackpots of the 1990s, the ones who read the Constitution with a keen eye for any word or phrase they could twist into a rationale to relieve themselves of responsibility for anything, held many Montana communities hostage through their twisted assaults on civil society. They fancied themselves “freemen” avenging Ruby Ridge or Waco or any other violent standoff that they could exploit for their own interests.

If you wonder about the mental health credentials of Cliven Bundy, the rancher at the heart of the protest in Nevada, or the groupies who descended on the desert in support of their God-given right to steal from the American people, do a Google search for the Reuters photo of the “protester” sprawled out on an I-15 bridge, gun drawn on BLM officers. These are zealots with a tragically inflated sense of self-importance. They are the most dangerous kind.

Rancher Bundy didn’t like the regulations that the BLM imposed on the federal lands he leased to graze his cattle, so he went to court to protest them. He lost, and lost again.

Cattle grazing in the Southwest is a tough business. There’s not much water. It’s often profitable only if you get access to a lot of publicly owned land on the cheap. But Bundy stopped paying his grazing fees in 1993, and insisted that the federal government had no right to bill him for using public land near his 160-acre ranch, partly, he said, because his own ranch was so old. The feds issued warnings, revoked his permit and obtained several court orders, but took no other action. Finally, they decided they had to get tough. At stake were threatened desert tortoises; Bundy refused to obey an order to remove his cattle from an area known as Gold Butte, which was designated habitat for the species.

I’ve never been a huge fan of the BLM, as it’s often seemed the least effective federal agency. But I think the best approach involves working to reform the agency, and more importantly, properly funding it so it can do its job with a degree of professionalism.

None of that matters to Bundy. Once he saw the writing on the wall — that the law wasn’t on his side — he reacted like all those other Western thugs we’ve been dealing with for decades. He started making up his own law. He’s amazingly blunt about it, announcing that he does not “recognize the United States as even existing.”

The overwhelming majority of the 16,000 public-land ranchers pay us for the opportunity to graze their cattle on our land. I’ve watched many of them form partnerships with government agencies and incorporate ecological restoration as an integral part of their ranching operations. And I’ve watched those efforts produce varied results on the land. All these examples of cooperation form a stark contrast to what’s happening in Nevada.

Let’s look at the facts: Bundy hasn’t paid for his grazing leases for decades. Yet his cattle still graze on our land, eating our grass, and probably making that part of the Nevada desert ever less suitable for desert tortoises. Meanwhile, Bundy paints himself as a victim of the jackbooted feds.

If any of us tried to get away with that, we’d have been in jail long ago. It just goes to show that if you’re willing to wave a tattered pocket copy of the Constitution above your head (even if you don’t understand it) while shouting “freedom” at the top of your lungs, you can get away with almost anything. And that’s why these people are so dangerous.

Rob Breeding is a contributor to Writers on the Range, an opinion column service of High Country News. He writes in Powell, Wyoming.

]]>No publisherEnergy & IndustryWriters on the Range2014/04/22 10:04:13 GMT-6ArticleRiver access in Montana is worth fighting forhttp://www.hcn.org/wotr/river-access-in-montana-is-worth-fighting-for
Even when one's opponents are powerful billionairesFor people who think heaven must be a lot like fishing and floating Montana’s beautiful rivers, access to them is once again at the top of our agenda. For many of us, it’s always been our first concern. Montana has probably the best and most egalitarian access laws in the country -- at least when it comes to rivers: We can travel them unimpeded within the high-water marks on either side.

But because some folks with almost unlimited amounts of money will go as far as possible to protect their privacy and block public access, it looks like we’ll have to keep fighting to retain our river rights.

When I moved to Montana 21 years ago, the locals spoke of the state’s Stream Access Law in the kind of reverential tones usually reserved for secret fishing holes. Everyone had the mindset back then that stream access was a settled matter.

“We have it, and we’ll enjoy it until we’re too old to wade between the high-water marks,” was the attitude.

Montanans cherish the law as something that makes living here far better than living in states such as Wyoming, where a dude can be cited for trespass for dropping an anchor in the wrong place. Most Wyomingites readily concede that when it comes to stream access, Montana has it all over the Equality State. And generally speaking, Wyomingites will more readily join the Grizzly Bear Artificial-Insemination Team than admit that Montana’s better at anything.

There have been a few bumps on the road to stream-access nirvana since the halcyon days before A River Runs Through It. One of them was the 15-year battle for access on a branch of the Bitterroot River called Mitchell Slough. There, a group of wealthy landowners essentially argued that they’d done plenty of work fixing up their spreads after they bought them from the native Bitterrooters who’d trashed the joint, so they should be exempt from the Stream Access Law. They then proceeded to hang “No Trespassing” signs on the river and defied anyone to make them take them down.

Some Montanans were slow to realize that the Mitchell Slough landowners were trying to do in the courts what could be impossible at the polls: Overturn the access law.

For years, the fight was carried on by a ragtag band of radical Bitterrooters — radical because they were fighting for the notion that the law applies to everyone, including landowners with ridiculous amounts of disposable income to pay attorneys. It took some time, but most of the bigwigs in Montana trout circles eventually grasped how serious that fight was. Finally, when the Montana Supreme Court became involved in the Mitchell Slough case, it overturned a lower court ruling with a unanimous opinion that made clear that if the landowners had gotten their way, the state’s Stream Access Law could eventually be dismantled.

But even though people didn’t realize it then, it is clear now that Mitchell Slough was just an early skirmish. In late April, the Montana Supreme Court took testimony on the appeal of another lower court ruling designed to deprive Montana anglers of their access rights. The case comes from the Ruby River, where another man with deep pockets — media mogul James Cox Kennedy — found a judge willing to go along with his move to curtail river access. The lower court judge had agreed that a 60-foot road easement narrows to the width of a bridge whenever the road crosses a river upstream from a wealthy landowner’s trophy ranch — thus keeping the riffraff out.

Kennedy’s interests extend beyond the easement dispute, as his attorney made clear at the court hearing on the campus of Montana State University. The state, Kennedy’s attorney argued, had been wrong all along in allowing any access on the Ruby. That’s an argument unlikely to gain much purchase with the Montana Supreme Court, but its intended audience is more likely the Roberts’ U.S. Supreme Court and its increasing obedience to the desires of the wealthy.

Meanwhile, the Montana-based Public Land/Water Access Association has taken up the fight, and we can only hope it will prevail. In the meantime, we need to understand that Montana’s Stream Access Law, which seemed a settled matter just a few decades ago has become the cause célèbre for several radical property-rights groups. They won’t be satisfied until they’ve gutted the law and replaced it with a feudal system, where the only folks able to float Montana rivers will be guides who have paid dearly for the privilege. Then, local people will also be forced to pay to do what generations of Montanans have always done: Float rivers and catch trout.

We’ve got our work cut out to keep that from happening.

Rob Breeding is a contributor to Writers on the Range, a service of High Country News (hcn.org). He teaches journalism at Northwest College in Powell, Wyoming, writes an outdoors column for the Flathead Beacon newspaper in Kalispell.

]]>No publisherRecreationWriters on the Range2013/06/27 00:00:00 GMT-6ArticleStream access wins decisively in Montanahttp://www.hcn.org/wotr/stream-access-wins-decisively-in-montana
A new ruling prevents landowners from privatizing public waterways.The long slog is over. The Montana Supreme Court has finally settled a dispute over who controls access to a side channel of the Bitterroot River known as the Mitchell Slough.

The verdict: The public does; Mitchell Slough is a natural waterway, and that means access is guaranteed for the people of Montana.

You may think that means I'm rigging up the fly rod and making plans to go wet a line in the backyard of rock singer Huey Lewis. Then I can thumb my nose at him and all the other wealthy landowners who have tried to bar people like me from the slough since the early 1990s.

I'm not. I doubt that I'll ever fish the stream. This battle was never just about Mitchell Slough. Many in the state's angling community were slow to realize it, but the dispute occurred simply because landowners directly assaulted a law that allows public recreational access between a stream's high water marks. It doesn't matter who owns the land, or even who wants access to it. If a lower court ruling banning access to the slough had stood, access to every river and stream in Montana would have been threatened.

That was clear to the Rose brothers, a couple of local boys who went fishing at Mitchell Slough back in 1991, with Bitterroot Star publisher Michael Howell in tow. And it was clear to the members of the Bitterroot River Protection Association, the kind of motley crew of rabble-rousers only the Bitterroot could produce. It was also clear to Democratic Gov. Brian Schweitzer. Shortly after taking office in 2004, Schweitzer reversed his predecessor's decision and instructed the Department of Fish, Wildlife and Parks to defend the public's right to fish the slough.

Most importantly, it was clear to the Montana Supreme Court, in a unanimous decision Nov. 17 written by Associate Justice Jim Rice, a former Republican legislator and House majority whip, who was appointed by Republican Gov. Judy Martz. Rice wrote that prohibiting public access to the slough was nothing less than an "absurdity."

The absurdity was that the lower court ruling created a road map for using the Stream Access Law to ban stream access anywhere. At that ruling's core was the idea that Mitchell Slough -- which begins at the Tucker head gate north of Corvallis and flows 16 miles before rejoining the Bitterroot near Stevensville -- had been so altered by man that it was an irrigation ditch and no longer a "natural, perennial flowing stream."

So folks with deep-enough pockets could do what the slough landowners did: Muck around in the stream a bit creating "improvements," hire consultants to convince the local conservation board that the waterway was no longer natural (which would also mean that you'd no longer need permits for streambed alterations), declare the waterway a ditch, hang big "No Trespassing" signs -- and then demand that local constables enforce them.

Landowners argued that Mitchell Slough was unique, and said it wouldn't set a precedent elsewhere. But was it paranoid to suggest that the rationale used to close the slough might also be used to close, say, the main stem of the Bitterroot? After all, there is a major dam high up in the Bitterroot Range on the West Fork, there are numerous diversion dams in the valley floor, and virtually every Bitterroot tributary is redirected for irrigation purposes.

Consider this exchange from the lower court testimony of state fisheries biologist Chris Clancy:

Question: Are there any main stem rivers -- I'm talking the Yellowstone, the Missouri, the Beaverhead, Gallatin -- any main stem rivers that have not been altered by humans?

Clancy: None that I'm aware of.

I talked to Michael Howell recently. The local newsman had just returned from the slough, where, in a re-enactment of the event that started it all more than 15 years ago, he'd watched as Randy Rose climbed past "No Trespassing" signs and fished Mitchell Slough. Howell's voice was weary. He's been on the phone constantly since the decision was announced.

"It took so long to get to get some resolution to it," said Howell, who became a charter member of the Bitterroot River Protection Association. "Most states don't have this kind of law. Montana is special that way. That's what's so great about this (ruling). It keeps it special."

Next time I launch my drift boat on the Bitterroot or on any other river in Montana, I won't forget the battle that was waged and won at Mitchell Slough. It was a fight to preserve what makes Montana special.

That's something worthy of a little paranoia.

Rob Breeding is a contributor to Writers on the Range, a service of High Country News (hcn.org). He teaches journalism at Flathead Valley Community College in Kalispell, Montana.

]]>No publisherPoliticsWriters on the RangeEssays2008/12/08 11:55:00 GMT-6ArticleWater is definitely for fighting in Montanahttp://www.hcn.org/wotr/16996
Rob Breeding calls stream access one of the most
contentious water issues in his state.One constant in the fierce debate over the public’s access to Mitchell Slough in Montana's Bitterroot Valley has been the complaint that generous landowners are being vilified despite their considerable efforts to restore the waterway.

It's instructive that one of the arguments used by supporters of the landowners is this "heroic restoration" tack. It's instructive because it's a red herring.

A decade or so ago, landowners -- most notably rocker Huey Lewis and businessmen Charles Schwab and Ken Siebel -- decided they wanted the public out after restoring much of Mitchell Slough, and in grand Bitterroot tradition, a fight over water ensued. When it comes to matters of stream access, however, noble intentions don't exempt landowners from the law, and Montana’s law regulating stream access applies to watersheds whether they’re pristine or degraded, restored or run down.

Today’s public spat obscures a larger question, and this is the more important one. Is Mitchell Slough a ditch, or is it part of the Bitterroot River? The answer matters because if it’s a ditch, the state’s Stream Access Law does not apply. If it’s part of the river, the public is entitled to access the waterway up to the high-water mark.

Apparently, that high-water mark runs within a few feet of Siebel’s backdoor.

The evidence that Mitchell Slough is part of the river is considerable. Surveys conducted in 1872 show the slough as part of the river. In fact, much of what we now call Mitchell Slough may have been the main stem of the Bitterroot River, according to those surveys.

The three irrigation canals that draw water from the slough all designate their point of diversion as the river. The Bitterroot Conservation District has a file full of 310 permits issued on the slough when landowners set about restoring the waterway two decades ago. Why are 310 permits important? You need one to work in or modify a natural waterway. You don’t need a 310 permit to fix your ditch.

Siebel himself acknowledged the slough was part of the Bitterroot River in water rights applications he filed in the 1980s, designating his point of diversion as a spring creek that was a tributary of the Bitterroot River.

Despite the considerable evidence to the contrary, landowners along the slough now have a District Court ruling in their favor. Its decision essentially creates a new class of water under the Stream Access Law: If waters that were formerly rivers and streams have been modified, the Stream Access Law no longer applies. The Montana Supreme Court will hear oral arguments for an appeal sometime later this year. I'm guessing the court will toss out the previous decision. To do otherwise would reverse its decades-long history of supporting stream access rights.

Meanwhile, the District Court’s decision creates a road map for wealthy landowners to put previously accessible streams off-limits to the general public.

“It’s a devastating decision,” said Michael Howell, a founding member of the Bitterroot River Protective Association, which is fighting to preserve access to the Slough. “It pretty much stands the law (on stream access) on its head.”

Montana Gov. Brian Schweitzer agrees. “This decision had to be appealed because it affects streams, creeks and sloughs all over Montana,” Schweitzer told the New York Times in July. “It’s a natural body of water, and by my reading of the stream access law, it should be open to the public to fish and recreate.”

Appeals filed with the Supreme Court describe the potential impact if the ruling stands: Any side-channel or any branch of a stream or river that has had some sort of a flow-control structure, and that has been changed by construction so that it looks different or is in a different location than it would be without human intervention, could be claimed and controlled for private ownership. This might affect an entire stream or river if it has been altered or controlled enough.

The Stream Access Law is about as close to a sacred text as one will find in these parts. If the Mitchell Slough landowners think Montanans will take lightly the efforts to eviscerate the law, maybe they need to step out from behind their "No Trespassing" signs and gated playgrounds and get a better sense of public opinion. What they'd find is that a lot of Montanans are fighting mad about what they're trying to pull at Mitchell Slough.

Rob Breeding is a contributor to Writers on the Range, a service of High Country News in Paonia, Colorado (hcn.org). He writes in Kalispell, Montana.]]>No publisherWaterMontanaWriters on the RangeEssaysArticle